Hard National Security Choices

Stefan Soesanto writes in with the following thoughts on my earlier post on Russia’s introduction of troops into Ukraine as an international law violation:

Amidst the ongoing political crisis in the Ukraine, numerous Western leaders have accused Moscow of violating international law by deploying unmarked Russian military forces across the autonomous Republic of Crimea. But is Moscow really violating international law or are these accusations mere diplomatic rhetoric?

The Russian position for sending troops into Crimea is based upon five legal arguments. First, the interim government in Kiev is not the legitimate government of the Ukraine as it violently usurped power in a coup d’état. Second, the interim government is promoting a nationalistic agenda which is threatening the human rights of the Russian minority living in the Ukraine. Third, given the fear of revolutionary chaos in the Ukraine Russia is facing a potential humanitarian refugee crisis at its border. Fourth, under Article 61(2) of the Russian constitution, the Russian federation “guarantees its citizens defense and patronage beyond its boundaries.” And fifth, President Yanukovych and the Prime Minister of the autonomous Republic of the Crimea invited Russia for security assistance to protect and stabilize the Ukraine.

In its case Somalia vs. Woodhouse Drake & Carey, the High Court of the United Kingdom ruled that a new government derives its legitimacy through three factors: (1) whether it is the constitutional government of the state, (2) the degree, nature, and stability of administrative control over state territory, (3) and the nature of its dealings with other governments.

Ascertaining the legitimacy of the interim government in Kiev is quite tricky. According to Article 111 of the Ukrainian constitution, the President can only be impeached from office by parliament through “no less than three-quarters of its constitutional composition.” On February 22, 2014 the Ukrainian parliament voted 328-0 to impeach President Yanukovych who fled to Russia the night prior. However for an effective impeachment under constitutional rules the 449-seated parliament would have needed 337 votes to remove Yanukovych from office. Thus under the current constitution, Yanukovych is still the incumbent and legitimate President of the Ukraine.

This constitutional oversight puts the interim government in legal limbo as the bills that are currently being signed into law by acting President Turchynov are not carrying any constitutional authorization. This problem of legitimacy also undermines Kiev’s dealings with foreign governments, as the government appointed by Turchynov does not represent the de jure official government of the Ukraine. As such, foreign governments who are willfully recognizing and thereby trying to confer international legitimacy upon the interim government in Kiev, are indeed breaking international law by violating (1) the sovereignty of the Ukraine and the law of the land (constitution), (2) the principle of non-interference, (3) and the practice of non-government recognition.

Whether the interim government in Kiev has effective administrative control over state territory also remains highly speculative, given the unfolding situation in Crimea, civil unrest in the eastern part of the country, and the persisting confusion in the chain of command within the Ukrainian military and police force.

Accordingly, the interim government in Kiev does not fulfill any of the three factors set out under international law that would render it legitimate.

If we take this interpretation to be true, then Kiev’s policies are currently unable to translate into legal substance, and are thus mere expressions of a political agenda. Does this agenda threaten the Russian minority in the Ukraine to such an extent that it could be considered a breach of international peace and security? If Russia believes it does, then it ought to bring the issue to the UN Security Council (UNSC) for consideration. If Moscow however does not refer it to the UNSC, but considers the situation to be grave enough to pass the threshold for a unilateral humanitarian intervention, Russia might actually have international law on its side.

While the legality of humanitarian intervention is still very controversial in the practice of international law, the successful legal defense of NATO’s actions in Yugoslavia in 1999 might serve as precedent to justify Russia’s military incursion into the Ukraine. Russia’s claim of a humanitarian refugee crisis at its border would thus reinforce the legal argument in support of Russia’s humanitarian intervention.

Under Article 61(2) of the Russian constitution, the Russian federation “guarantees its citizens defense and patronage beyond its boundaries.” In Russia’s domestic legal context, Article 61(2) forms the lawful justification for the mobilization of the armed forces. In international law however, Article 61(2) does not present a satisfying legal basis for military intervention abroad. While the use of force to protect nationals is not explicitly illegal under Article 2(4) of the UN Charter, customary international law dictates that the national citizen and the state are two distinct and separate legal entities. Equating one with the other would implicitly extend state boundaries into other states thus destroying the principle of sovereignty and with it the foundation of international law itself.

The last legal argument Russia has put forward is the most important one. It concerns the legality of military intervention by government invitation. On March 1st, Sergey Aksyonov, Prime Minister of the autonomous Republic of Crimea, asked Russia for help to ensure peace and security in the region. Three days later, Vitaly Churkin presented the UN Security Council with a written request by President Yanukovych for Russia’s help in “establishing legitimacy, peace, law and order, stability and defending the people of Ukraine.“

As ascertained prior, the interim government in Kiev is unconstitutional as its stands and President Yanukovych is still the legal president of the Ukraine. For the situation in Crimea this has two important effects. First the newly elected Prime Minister of the Republic of Crimea was not confirmed by the President of the Ukraine as set out in the constitution. As such the Crimean parliament violated Ukrainian law. Second, according to the constitution the Republic of Crimea is an inseparable part of the Ukraine and any attempts to declare independence with the help of foreign military support would be deemed a clear violation of state sovereignty and international law.

President Yanukovych’s request for help, however, represents a very different matter. As the legitimate President of the Ukraine he does retain the legal authority to invite Russian forces onto Ukrainian territory for any purpose lawful under international law. With the situation still unfolding in Crimea and the rest of the Ukraine, it is not really clear what the end-game of the Russian military is. Evidence on the ground suggests that Russian troops deliberately removed their insignia to create the image of peacekeepers rather than foreign occupiers. It remains to be seen as to how the political situation is evolving in the rest of the country and whether the Russian military will expand its operations in the future.

Considering the five legal arguments the Russian administration has put forward, and keeping in mind the still unfolding situation in the Ukraine, international law is currently playing a very diffuse role. On the one hand international law does support Russian claims that the interim government in Kiev is illegitimate, that Russia can invoke a legal position to mount a humanitarian intervention, and that Russia was lawfully invited by the constitutional government (i.e., President Yanukovych) to re-establish peace and security in the Ukraine. On the other hand, Russia’s argument for defending its nationals abroad does not have any legal standing in international law and its implicit support for the independence of Crimea is violating the sovereignty of the Ukraine.

All in all, it would be wise for Western leaders to refrain from accusing Russia of violating international law. The US and the European nations would fare much better by cooperating with the Russian administration to find a diplomatic solution to the political chaos at hand.

About the Author

About the Author

Ashley Deeks joined the University of Virginia Law School in 2012 as an associate professor of law after two years as an academic fellow at Columbia Law School. She served for ten years in the Legal Adviser's Office at the State Department, most recently as the Assistant Legal Adviser for Political-Military Affairs. In 2007-08 she held an International Affairs Fellowship from the Council on Foreign Relations. After graduating from the University of Chicago Law School, she clerked for Judge Edward Becker on the U.S. Court of Appeals for the Third Circuit.

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